Psychological Evaluations You Need for Trial: What They Can and Cannot Do

Ralph Underwager and Hollida Wakefield

ABSTRACT: Psychological evaluations can provide information
that increases the
accuracy of the decision-making process of the justice
system. Attorneys, however,
must understand both their usefulness and their limitations.
Psycholgical evaluations
of defendants in criminal and civil cases, of plaintiffs
in civil cases, and of child
witnesses are discussed.

Lawyers and lawyering as we know it now began with approximately
simultaneous
but separate developments in Greece and Israel in the
fifth century b.c. In Greece the
rhetores, professors of rhetoric, began to teach people
how to sway juries using
oratory. Aristophanes, in the fourth century b.c., had
an experienced Athenian juryman
put it this way in one of his plays:

There isn't a form of flattery they don't pour into
a jury's ear. And some try pleading
poverty and giving me hard luck stories. . . . Some
crack jokes to get me to laugh and
forget I have it in for them. And, if I prove immune
to all these, they'll right away drag
up their babes by the hand (Casson, 1987, p. 123).

In Israel the Jews returned from captivity in Babylon
to rebuild Jerusalem and the
Temple. To maintain their identity and distinguish themselves
from the surrounding
pagan tribes, they developed a meticulous scholarly
reliance upon the Torah, the
written law, and the minhag, tradition. The scholars
who studied these areas became
the jurists, canonists, moralists, and lawyers of Jewish
life. These two distinct historical
developments have coalesced in Western civilization
to produce our current system of
law with an emphasis on high moralism and careful scholarship
but a reality that is
often an amoral, goal-oriented, and an end-justifies-the-means
experience
(Underwager & Wakefield, 1989; Wakefield & Underwager,
1988).

For 2000 plus years, law and lawyers have relied upon
common sense, introspection,
anecdotes, and culturally accepted truisms about human
behavior in making and
practicing law. Psychology claims Aristotle as the first
practitioner of a systematic
analysis of human behavior but the contemporary science
of psychology is generally
dated from the foundation of the first experimental
psychological laboratory by
Wilhelm Wundt at the University of Leipzig in 1879 (Woodworth
& Schlosberg, 1954).
For over 100 years psychologists have been skeptical
of commonly accepted beliefs
about human behavior and have acquired theories, facts,
and data that often
contradict assumptions deeply embedded in the law. The
first experiment in the
psychology of testimony was likely done by Cattell in
1893 at Columbia University.
The first time a psychologist testified in a trial as
an expert witness was 1896 in
Munich in a serial sexual murder trial. The psychologist,
Schrenck-Notzing, testified
that witnesses are suggestive, and extensive pretrial
publicity had led to "retroactive
memory-falsification." He supported his testimony
with laboratory research on memory
and suggestibility (Bartol & Bartol, 1987).

Not much has changed in 97 years. Law and the science
of psychology are still
struggling today with reconciling differing views and
facts about memory and
suggestibility as well as other issues. The conflict
between law and psychology is
largely fueled by the psychologist's distrust of commonly
held truisms about human
behavior and the lawyer's reliance upon such aphorisms.
An example is the
readiness of the law to rely upon demeanor as a source
of information that can lead to
truth, whereas the psychologist who is familiar with
the research evidence knows that
a subjective interpretation of demeanor does not rise
above chance level in
ascertaining truth (Bond & Fahey, 1987; Bull, 1989;
DePaulo, Lanier, & Davis, 1983;
Ekman & O'Sullivan, 1989, 1991; Rogers, 1988; Schlenker
& Weingold, 1992).

Another source of the conflict is that psychology is
looking for what is nomothetic, that
is, law-like or lawful about human behavior. Therefore
the psychologist looks at
bunches of people to see what regularity or commonality
there is to behavior across
people and across environments. The facts of the science
of psychology are those
patterns of regularity which can be reliably replicated
and predicted across large
numbers of people and situations. Law, however, looks
at an individual, at individual
case-specific circumstances, and at a specific environment
to determine the culpability
of a specific person. This is the idiographic responsibility
of the justice system. The
psychologist says many people do thus and so. The lawyer
says tell me about this
person right here. If the psychologist succumbs to this
temptation and says innocent or
guilty, that is beyond both the science of psychology
and the competence of any
scientist. If the law accepts the probabilistic regularities
of the science of psychology
about most people, but not all, it can never get beyond
reasonable doubt and thus
nobody gets convicted.

A possible solution to this conflict, however, is the
admission by Tribe (1971) that all
factual evidence is by nature ultimately statistical
and all legal proof is probabilistic.
No conclusion can be drawn from any empirical data without
some step of inductive
inference. For those lawyers who see psychology as,
at best, soft science and, at
worst, hopelessly subjective speculation, Tribe's understanding
may reduce the
tendency to automatically reject information from psychology.

Nevertheless, both the lawyer and the psychologist should
have no trouble agreeing
that improved accuracy is a goal of both ventures. Nobody
would deny that both the
science of psychology and the exercise of law are imperfectly
accurate. Nobody would
deny that, while a trial in the justice system may be
a lot of things, it is intended to
produce the most accurate result possible. Every person
involved in the justice system
benefits from increasing the accuracy of the decision-making
process. This includes
judges, attorneys, accusers, victims, defendants, law
enforcement, and the entire
commonwealth.

Through legal decision making we seek to avoid the classic
errors of convicting an
innocent defendant or acquitting a guilty one, or finding
liability when there is none or
failing to find liability when it is present. Whatever
justice may be, surely it is not error
(Saks & Kidd, 1980-81, p. 123).

The science of psychology can provide information that
increases the accuracy of the
decision-making process for the justice system. However,
in order to do that, lawyers
need to understand how to let it happen. That is what
this presentation aims
at-increasing the ability of the lawyer to use psychology
as an aid in making better
and more accurate decisions.

It is not necessary to become sophisticated in scientific
methodology or the theories,
methods, and statistical procedures of psychology to
understand at least three basic
facts about psychology. First, it is a widely variant,
heterogeneous corpus of
knowledge that is as broad as human behavior and interests.
Psychologists study the
refractory latency of the sea anemone's motor neurons,
the dream archetypes of Jung,
and the anticipatory fractional goal responses of white
rats.

Second, an important dimension is the relative level
of sophistication of the mental
health professions. While all may speak with similar
degrees of confidence and
certainty, that has no relationship to accuracy (Arkes
& Harkness, 1980; Bell & Loftus,
1989; Fischhoff, Slovic, & Lichtenstein, 1977).
Although there are individual
differences, the training of mental health professionals
permits a ranking in terms of
likely scientific sophistication. Social workers and
psychiatrists are less likely to be
aware of scientific considerations than psychologists.
However, the decrement in rigor
of training since the late 1960s and the development
of Psy.D. degree-granting
institutions suggests that younger psychologists may
be less able to demonstrate
sophisticated scientific understanding (Dawes, 1992).

Third, there are differences in the level of scientific
undergirding available for theories,
facts, generalizations, and explanatory constructs of
psychology. The concepts of
psychology vary from those with high and clear validity
to low and doubtful validity.
Unfortunately, there are many psychologists who appear
to be unaware of this
distinction and are not competent to evaluate data in
a scientific fashion (Dawes,
1988; Faust & Ziskin, 1988; McFall, 1991; Meehl,
1989; Overholser & Fine, 1990;
Sechrest, 1992; Wakefield & Underwager, 1993; Ziskin,
1983).

While the legal system may fairly safely assume that
a competent computer
programmer knows what most programmers know about software,
that assumption
cannot be made in the "soft" areas of the
science of psychology (clinical, counseling,
community, social, personality, developmental) (Meehl,
1989). The Frye test or other
approaches the law takes to handle this factual diversity
in level of validity may
produce rough approximations but does not fully encompass
the issues involved.
Unfortunately, jurists often look to prior judicial
opinions to determine the general
acceptance of psychological research. This may introduce
significant error into rulings
on the issue of admissibility of psychological information.
Judges make errors on the
basis of individual differences, levels of knowledge
of law, and personal factors.
Whether or not there is general acceptance in the scientific
community is best
determined by the psychologists themselves (Kassin,
Ellsworth, & Smith, 1989; Large
& Michie, 1981; Monahan & Walker, 1991).

An area in psychology where there is now high and clear
validity crucial to the use of
psychological evaluations in the courtroom is personality
traits and behavioral
dispositions. After more than 20 years of debate, it
is now understood there are indeed
personality traits that are at least quasi-nomothetic
and demonstrate consistency
across situational variables (Tellegen, 1991). We are
not limited to a view of ourselves
or our neighbor as essentially capricious and subject
to random variations in mood or
behavior. The psychological evaluations likely to be
the most significant in the
courtroom are personality assessments. If the assessment
is done using techniques
and procedures with demonstrated validity and reliability,
and if the interpretations are
supported by credible data, statements about the likely
behavior of the individual may
be properly made. Such statements would not be subject
to challenge by the Frye test
nor should they be denied as lacking probative value.

Although the law recognizes experience as a basis for
an opinion, any person,
purporting to be a scientist, who advances an opinion
based on experience alone has
abandoned scientific knowledge. It is unethical for
a psychologist to state an opinion
based on experience alone (Dawes, 1989). The law also
places heavy emphasis on
personal interviews. The scientific psychologist knows
that one of the most solidly
established facts in psychology is that statistical,
actuarial approaches based on valid
and reliable measurements are superior to clinical interviews
alone (Dawes, Faust, &
Meehl, 1989; Einhorn & Hogarth, 1986; Gambrill,
1990; Garb, 1989; Kleinmuntz,
1990). This is hard for many mental health professionals
to accept since it seems to
each of us that our own brilliant insights should be
better than what a $3.95 calculator
can produce. Unfortunately, the data are contrary to
that perception. A lawyer who has
done selection interviews for employees or partners
may have some sense of the
fallibility of such interviews.

Criminal Cases:

Psychological Evaluation of the Defendant: What it Cannot Do

No psychological test nor evaluation procedure can ascertain
whether a given
individual has, in fact, abused a child or committed
any other specific behavior. Hall
and Crowther (1991) observe, "In sum, there appears
to be no psychological method
of identifying sexual aggressors and predicting recurrence
of sexually abusive
behavior that has unequivocal empirical support"
(p. 80). Myers (1992) notes that
"There is no psychological litmus test to detect
sexual deviancy." Erickson, Luxenberg,
Walbek, and Seely (1987) report that there is no typical
sex offender MMPI profile and
that "Attempts to identify individuals as likely
sex offenders on the basis of their MMPI
profiles are reprehensible" (p. 569).

Psychological tests are often misused and overinterpreted
and misinterpreted in
forensic evaluations (Wakefield & Underwager, 1993).
The attorney should therefore
request all records from other evaluations (not only
reports, but notes and raw test
data) and provide it to his or her expert to review.
One of the areas of testimony a
psychologist can provide is to indicate where there
is no satisfactory scientific data to
support a claim. This is to identify areas or concepts
of low and doubtful validity
(Meehl, 1989). Also, psychologists conducting an evaluation
are ethically required to
be current in knowledge and to make available all data
that form the basis for their
evidence or services (APA Committee on Ethical Guidelines,
1991). Not to do so or
not to be able to provide supporting credible data is
unethical, malpractice, and
negligent.

A penile plethysmograph should never be used to determine
whether an individual
who denies abuse is, in fact, sexually deviant. It must
not be used to suggest whether
or not a given individual is a pedophile. It should
not be used with juveniles under any
circumstances. This technique, when done carefully and
appropriately, may be helpful
for treatment planning. But it should never be used
with someone who denies sexual
abuse in order to assess the veracity of the denial.
The consensus of the experts in the
field is that plethysmography may be useful in treatment,
has limited use with known
sex offenders in predicting future behavior, but is
of no use in screening a normal
population. It cannot be used to determine whether a
person who has been accused
of sexual molestation and is denying it is telling the
truth (Annon, 1993; Barker &
Howell, 1992; Murphy & Peters, 1992).

What it Can Do

A psychological evaluation of the person accused can
provide information concerning
the likelihood that an individual would engage in the
behaviors alleged. There is a
regularity to persons and a link between personality
and behavior. A shy, introverted,
individual is unlikely (unless under the influence of
drugs or alcohol) to tell loud jokes
and become the center of attention at a party. This
behavior would not be unusual in a
histrionic, uninhibited extrovert. The fundamental principle
involved is the nomothetic
trait and behavioral dispositions mentioned earlier.
An individual cannot be selectively
crazy and a disorder cannot be confined to one singular
situation or behavior. Normal,
functional persons do not act in highly bizarre, unusual,
and totally idiosyncratic ways.

Psychological evaluations are less helpful when the
behaviors alleged are of
nonviolent fondling and closer to normal, acceptable
behavior. But if the allegations
are of more intrusive, deviant, or sadistic behaviors,
a psychological evaluation gives
extremely useful information. A psychologically-normal
individual is unlikely to
violently rape a preschooler.

Although the terms are often used interchangeably, a
distinction must be made
between "sex offender against a minor" and
"pedophile." The former is a criminal
sexual behavior and the latter an anomalous sexual preference.
Okami and Goldberg
(1992) note that, because some actual pedophiles may
never act on their impulses,
and/or are never arrested, samples of sex offenders
against minors do not represent
the population of pedophiles. Therefore, research on
the characteristics of child
sexual abusers must not be generalized to pedophiles.

There is no single child sex offender personality type.
Child sexual abusers are often
described as inadequate, immature individuals with low
self-esteem and poor social
skills. They show poor impulse control. Incest fathers
are sometimes described as
tyrannical, domineering, and behaving without regard
for other family members, but
some are seen as shy, inhibited, and ineffectual in
social relations. They are
sometimes seen as feeling inadequate as males and angry
at women and also as
hostile, aggressive, psychopathic and violent (Ballard,
Blair, Devereaux, Valentine,
Horton, & Johnson, 1990; Kalichman, Shealy, &
Craig, 1990; Langevin, 1983;
Overholser & Beck, 1986; Weinrott & Saylor,
1991). The research supporting these
observations is not as strong as it could be but it
is continuing to accumulate.

Several oft-repeated claims are unsupported by research.
For example, although
some professionals distinguish between "fixated"
and "regressed" pedophiles,
empirical research does not support the existence of
this typology (Conte, 1990;
Knight, 1989; Knight, Carter, & Prentky, 1989; Simon,
Sales, Kaszniak, & Kahn, 1992).
Another unsupported claim is that most sexual abusers
were themselves abused as
children. But the empirical evidence does not support
this belief (Garland & Dougher,
1990; Langevin & Lang, 1985; Murphy & Peters,
1992; Rivera & Widom, 1990; Widom,
1989a, 1989b, 1989c). Although the DSM-III-R (American
Psychiatric Association,
1987) states that childhood sexual abuse is a predisposing
factor in pedophilia, this
statement is not found in the DSM-IV (American Psychiatric
Association, 1994).

However, despite the fact that sex offenders are heterogeneous
in personality
characteristics, they are likely to have psychological
problems. The more aberrant the
behavior of a child sexual abuser, the more likely it
is that he will have psychological
difficulties that are reflected in psychological testing.
Although there is no typical MMPI
profile for child abusers, they generally will not have
normal MMPIs. The pathology
tends to be found in the elevation of the scales which
reflect poor impulse control,
antisocial behavior, poor judgment, a history of acting
out, lack of self-esteem, feelings
of inadequacy, a schizoid social adjustment, much time
spent in fantasies, and/or
thought disorders and confusion. Scale 4 in various
combinations with other MMPI
scales is a common pattern.

At the same time, some sex offenders produce normal
MMPIs. Erickson, Luxenberg,
Walbek, and Seeley (1987) found that 19% of their convicted
sex offenders had within
normal limits profiles. Shealy, Kalichman, Henderson,
Szymanowski, and McKee
(1991) report on MMPIs of incarcerated sex offenders
against children and found two
of four subgroups with mean MMPI profiles that were
within normal limits (although all
four groups had various types and levels of difficulties
in personality functioning).
Therefore, a "normal" personality based on
an MMPI or other assessment techniques
does not mean that the individual could not be a sexual
abuser.

The individual must be evaluated in light of the specific
behaviors he is accused of
committing. When it cannot be demonstrated that an accused
person has the level of
pathology expected given the behaviors alleged, the
likelihood of a false accusation
increases. However, the presence of psychological problems
does not mean the
abuse is real, since most people with psychological
problems are not sexual abusers.

The psychological evaluation should include a diagnostic
interview, a social/sexual
history, and a battery of psychological tests, with
emphasis on objective tests such as
the Minnesota Multiphasic Personality Inventory (MMPI-2),
Millon Clinical Multiaxial
Inventory-II (MCMI-II), and the California Psychological
Inventory (CPI). We use the
Shipley for intellectual screening, and if necessary
perform a Wechsler Adult
Intelligence Scale (WAIS-R). Depending upon the responses
to the initial tests, we
may add other tests. Tests intended for sex offenders,
such as the Multiphasic Sexual
Inventory, should not be used for individuals who are
denying abuse. The basic
selection criterion for tests should be demonstrated
validity and reliability. Projective
techniques such as the Rorschach, the Draw a House,
Tree, Person, and the Thematic
Apperception Test should be used only with the ethically
required appropriate
qualifications and limitations.

Although the research described above is on men, a psychological
evaluation is also
useful when a woman is accused of sexually abusing a
child. Awareness about
women perpetrators of sexual abuse has greatly increased
in recent years, although
sexual contact between children and women is a minority
of child-adult sexual
contacts. Many studies depict women who sexually abuse
children as being loners,
socially isolated, alienated, likely to have had abusive
childhoods, and apt to have
emotional problems, although most are not psychotic
(see Wakefield & Underwager,
1991a for a review). It is unlikely that a psychologically
healthy and well-adjusted
woman would sexually abuse a child.

Admissibility and Psychological Evaluations vs. Profile
Evidence

A psychological evaluation is different from profile
evidence. The psychological
evaluation includes clinical interviews and psychological
tests and provides
information about the individual's psychological characteristics
and functioning. The
information obtained from objective tests such as the
MMPI-2 the MCMI-II and the
WAIS-R is based on empirical evidence from the normative
samples used in
standardizing the tests. In addition to a diagnostic
interview and psychological testing,
a forensic evaluation includes information from the
review of available documents
such as police reports, child protection reports, hospital
records, and transcripts,
tapes, or statements of the complaining witness.

The concept of profiles comes from the FBI's Behavioral
Science Unit. McCann (1992)
defines profiling as "the process of analyzing
various aspects of violent crime to derive
a set of hypotheses about the characteristics of an
unknown assailant. The ultimate
goal of profiling is to assist in the successful apprehension
and conviction of the
perpetrator" (p. 475). Reiser and Klyver (1987)
define profiling as an "imprecise art
consisting of case evidence, probability data from similar
cases, psychological
information about the victim and possible suspect, possible
unconscious as well as
conscious motivations, and the meaning of available
symbolic communications,
including mutilations or ritualistic markings"
(p. 439). The model for this profiling
approach is Sherlock Holmes.

A profile includes demographic data such as age, sex,
and education, the modus
operandi, and ambiguous personality traits such as "loner"
and "low self-esteem."
Data used to generate profiles are developed from clues
found at the crime scene,
information about the victim, forensic science reports,
and witness statements. For
example, the FBI described the likely kidnapper of Jacob
Wetterling (a boy kidnapped
in Minnesota in 1989) as "a white man between 25
and 35 years old . . . a loner
working at an unskilled job that requires little contact
with the public . . . he has low
self-esteem and may have physical defects ranging from
acne scars to amputation"
(Doyle, 1989). Although profiling can potentially be
based on empirical data, at the
present time it is poorly researched and it is generally
held that profiling is more art
than science.

Profile evidence is usually not admissible in court,
although McCann (1992) cites
three cases where FBI profilers have been qualified
and allowed to testify.2 Myers
(1992) points out that many courts hold sex offender
profiles are a form of novel
scientific evidence that has not found general acceptance
in the scientific community.
Peters and Murphy (1992) summarize appellate rulings
and conclude, "With the
notable exception of courts in California, virtually
every appellate court that has ruled
on the admissibility of expert testimony regarding the
psychological profile of child
molesters has rejected it" (p. 39).

Therefore, if the attorney wants to enter the results
of a psychological evaluation into
evidence, the proposed testimony must be differentiated
from profile evidence. If it is
defined or characterized as "profile evidence"
it is unlikely to be admitted. To permit an
adversary to characterize a carefully done psychological
evaluation as profile
evidence is a grievous error. The proper response is
to immediately object and then
elicit testimony from the expert as to the difference.
Information from a psychological
evaluation that is based on standardized and accepted
objective psychological tests
and that forms the basis of the expert's opinion testimony
is not novel scientific
evidence subject to the Frye test.3 The information
from the interviews and tests
should be integrated into the body of data available
from all sources, i.e., history, past
records, behavioral observations by others, and medical
findings (Matarazzo, 1990).

Evaluation of the Child Witness4

The evaluation of the child witness is extremely useful
and the attorney should always
request the court to order an interview and/or evaluation
of the child witness by the
defense's expert.5 This is granted some of the time.
The problem is that many
interviews, particularly of young children, are so leading
and suggestive that the
information obtained is simply not reliable. Therefore,
even when there are videotapes
of prior interviews, a new interview can be helpful
in determining what may have
actually happened. However, testimony about the ultimate
issue will not be permitted.

Young children can provide forensically useful information,
but adults have to know
how to get it from them (Ceci & Bruck, 1993a, 1993b;
Garbarino & Stott, 1989). Jones
and Krugman (1986) describe a case of a three-year-old
girl, who had been
kidnapped, abused, and left in a mountain outhouse.
When found and later
interviewed by the police she was able to describe what
had happened and to pick
out the perpetrator from a lineup. The perpetrator ultimately
confessed, confirming the
accuracy of the child's description.

However, although young children can provide accurate
information, they recall less
than do adults (Lepore, 1991). But the less information
the child gives in free recall,
the sooner the interviewer may start using leading questions,
which can influence the
child and distort the story. Also, young children may
perceive the interview task
differently from adults and try to tell the interviewer
what they believe the interviewer
wants them to say (Ceci, Ross, & Toglia, 1987; Cole
& Loftus, 1987). They may answer
questions they do not understand and about which they
have no information (Hughes
& Grieve, 1983).

Therefore, the interviewer must attempt to tap into
a child's accurate free recall by
encouraging the child to tell in his or her own words
what has happened. Several
professionals have suggested guidelines for conducting
an unbiased evaluation and
noncontaminating interview (e.g., Annon, 1994; Daly,
1991 & 1992a, 1992b; Quinn,
White, & Santilli, 1989; Powell & Thomson, 1994;
Raskin & Yuille, 1989; Slicner &
Hanson, 1989; Underwager & Wakefield, 1991; Wakefield
& Underwager, 1988,
1994c; White, 1990). The interviewer must go into the
interview with an open mind
without bias about what happened and attempt to explore
all possible hypotheses.
The interviewer should ask open-ended questions and
encourage the child to provide
a free narrative. Details should be encouraged by responses
such as "and then what
happened." Pressure and coercion, leading questions
and selective reinforcement of
responses, and unvalidated techniques must be avoided.

A promising procedure for interviewing children and
analyzing the resulting interview
is Criterion Based Content Analysis/Statement Validity
Analysis (CBCA/SVA). This
technique assumes an account based on memory for an
actual event will differ in
content and quality from accounts that are based on
fabricated, learned, or suggested
memory. The procedure requires a relatively complete
statement obtained as soon as
possible after the child has disclosed an incident and
the interview must be designed
to obtain as much free narrative as possible. Leading
questions and suggestions must
be avoided. The interview is tape-recorded and transcribed
for later analysis
(Köhnken & Steller, 1988; Raskin & Esplin,
1991; Rogers, 1990; Undeutsch, 1989).

The child should be discouraged from trying to answer
questions when the answer is
not known. Age-appropriate instructions such as, "I
don't want you to say something
that didn't happen, but if something did happen, I want
you to tell me about it" can be
given. Repeated questions should be avoided since this
tells the child the previous
answers were not acceptable. Discussions of "good
touch" and "bad touch" should not
be used since these are confusing and potentially contaminating.

All interviews of the child should be videotaped, or
at least audiotaped, since a tape is
the only means whereby the procedures and information
obtained during the
interview can be accurately documented (DeLipsey &
James, 1988; Herbert, Grams, &
Goranson, 1987; Jenkins & Howell, 1994; Lamb 1994a,
1994b; Raskin & Yuille, 1989;
Underwager & Wakefield, 1990, Wakefield & Underwager,
1988, 1989, 1994b). In
practice, this is often not done. Many prosecutors do
not want the defense to get a
tape so that they can criticize the interviewer's techniques
during the trial (Stern,
1992). This is hardly a legitimate argument if the goal
is accuracy in decision making.
A major research project on child victim witnesses reported
by Myers (1994) found a
clear consensus that investigative interviews of children
should be videotaped.
Videotaping was seen as providing an incentive for interviewers
to use proper
techniques.

Assessing Prior Formal and Informal Interviews in the
Child Witness

The expert can provide helpful information about the
investigation and the resulting
statements from the child even if not allowed to interview
the child. Prior to trial,
children are often interviewed repeatedly, put into
sexual abuse therapy, and/or talked
to by adults who believe the abuse is real. This may
all occur prior to the defense
retaining its own expert.

In such cases, the progress of the case along with the
procedures followed by the
previous evaluators must be carefully examined in order
to assess possible
contamination (Wakefield & Underwager, 1988; White
& Quinn, 1988). When children
have been subjected to multiple leading and coercive
interviews and/or disclosure-
based therapy their recollections may become so contaminated
that it becomes
extremely difficult to determine what is likely to have
happened. Therefore, it is
essential to analyze all contacts with the child in
which abuse was discussed.

Understanding this is necessary for assessing a child's
current statements about
abuse. Although repeated and/or suggestive interviews
do not mean that a child has
not been abused, they make it very difficult to sort
out what, if anything, may have
happened. Ceci and Bruck (1993a) stress examining carefully
the conditions at the
time of the initial disclosure and the process since
then to which the child has been
subjected. The suggestibility of children to leading
and coercive interviews and the
importance of examining the above process is generally
accepted in the scientific
community.

A number of writers have examined memory development,
cognitive and moral
development of children, and suggestibility of children
to adult social influence (e.g.
Ceci, 1994; Ceci & Bruck, 1993a, 1993b; Doris, 1991;
Garbarino & Stott, 1989;
Lassiter, Stone, & Weigold, 1987; Lepore, 1991;
Lindsay, 1990; Loftus & Ketcham,
1991; Underwager & Wakefield, 1990; Wakefield &
Underwager, 1988). The fact that
children can be led to make statements about and even
believe in events that have
not happened does not mean that children lie, but rather
that they are influenced by
the adult's beliefs (Wakefield & Underwager, 1988,
1994c). Some recent studies have
provided dramatic demonstrations of the degree to which
young children can be
influenced by an interviewer (Ceci, 1994; Ceci &
Bruck, 1993a, 1993b; Ceci, Loftus,
Leichtman, & Bruck, 1994; Leichtman & Ceci,
in press; Clarke-Stewart, Thompson, &
Lepore, 1989; Haugaard & Alhusen, 1992; Thompson,
Clarke-Stewart, Meyer, Pathak,
& Lepore, 1991).

In situations where a child will eventually testify,
the memory will consist of a
combination of recall and reconstruction influenced
by all of the interviews,
conversations, and therapy sessions that have occurred
during the delay. The longer
the delay, the greater the possibility of social influence
and the more the memory may
consist of reconstruction rather than recall.

In the offer of proof concerning testimony about the
above, stress that the testimony
will concern the adult social influence exerted on the
child and not the credibility of the
child. This must be done to prevent the testimony from
being excluded on the basis
that it goes to the ultimate issue. Testimony about
prior interviews, particularly when
there are tapes and/or transcripts available, is often
extremely important. The New
Jersey Supreme Court in New Jersey v. Michaels (642
A.2d 1372, N.J. 1994) states:

[1] We therefore determine that a sufficient consensus
exists within the academic,
professional, and law enforcement communities, confirmed
in varying degrees by
courts, to warrant the conclusion that the use of coercive
or highly suggestive
interrogation techniques can create a significant risk
that the interrogation itself will
distort the child's recollection of events, thereby
undermining the reliability of the
statements and subsequent testimony concerning such
events (p. 1379).

Unsupported Interview Techniques

In evaluating the investigation and interview process,
look for unsupported interview
techniques that may have been used. Although the anatomical
dolls are most
frequently used, other techniques are also used. These
include books, puppets,
drawings, projective cards, play dough, games, and play
therapy (Kendall-Tackett,
1992). None of these are reliable or valid for assessing
possible sexual abuse. Their
use is apt to contaminate the statements children may
make, especially if the
interviewer encourages the child "to pretend."

Although the anatomically-detailed dolls are widely
used by many different types of
professionals (Boat & Everson, 1988; Conte, Sorenson,
Fogarty, & Rosa, 1991;
Kendall-Tackett & Watson, 1992), they are extremely
controversial and there is
disagreement in the professional community as to whether
they should be used (e.g.,
Koocher et al., 1994; Yates & Terr, 1988). The American
Psychological Association
(APA Council of Representatives, 1991) issued a statement
concluding that there are
no normative data for the dolls and their use, and that
there are no uniform standards
for conducting interviews with the dolls.

The use of the dolls can be a modeling and learning
experience for a child
(Underwager & Wakefield, 1990; Wakefield & Underwager,
1988, 1994c). Interviewers
model handling the dolls, suggest that they be undressed
(or undress them for the
child) and label them for the child. They ask the child
to show with the dolls what the
accused perpetrator did and they may even place the
dolls in sexually explicit
positions for the child. Several studies suggest that
some nonabused children engage
the dolls in sexual play (Dawson & Geddie, 1991;
Dawson, Vaughan, & Wagner,
1992; Everson & Boat, 1990; McIver, Wakefield &
Underwager, 1989).

The studies that claim to show differences between the
responses of sexually abused
and nonabused children have major methodological shortcomings
which limit any
conclusions that can be drawn from them (Ceci &
Bruck, 1993a, 1993b; Underwager &
Wakefield, 1990, Wakefield & Underwager, 1989, 1991b,
1994c; Wolfner, Faust, &
Dawes, 1993). Skinner and Berry (1993) observe that
distinct patterns of play of
abused versus nonabused children have not been identified
and that the lack of
norms calls into question the forensic use of the dolls.
Wolfner, et al. (1993) conclude
that there is no scientific evidence to justify clinical
or forensic diagnosis of sexual
abuse on the basis of doll play. Levy (1989) argues
that any statement by a child that
is the product of a doll-aided evaluation should be
inadmissible as evidence.

DeLoache (1995) notes that the basic reason for using
anatomical dolls is the belief
that the dolls will elicit information from children
that they are unable or unwilling to
give verbally. But she observes that, not only is there
no good evidence that dolls help
in interviews with very young children (age 3 and below),
the presence of the dolls
might result in the youngest children providing less
information. Younger children
cannot understand the basic self-doll relation assumed
by interviewers who use the
dolls. Since they cannot use dolls as symbols or representations
for themselves, they
cannot use the dolls to enact their own experiences.

In summary, there is no evidence that doll interviews
are a reliable method for getting
accurate information about sexual abuse. The anatomical
dolls cannot be said to be
generally accepted in the scientific community.

Children's drawings, such as the House-Tree-Person (HTP)
and Kinetic Family
Drawings, as well as free drawings, which are often
used in assessing possible
sexual abuse, are subject to the same criticisms as
are the dolls (Underwager &
Wakefield, 1990; Wakefield & Underwager, 1988, 1989b,
1991, 1994c). There is no
research establishing that drawings can be used diagnostically
to substantiate sexual
abuse. The only valid use of drawings is in establishing
rapport and encouraging the
child to talk. Similar criticisms apply to children's
books about sexual abuse, such as
Red Flag Green Flag People (Rape and Crisis Abuse Center,
1985). In this book, after
being led through a series of pages that present good
touch and bad touch, children
are told to color portions of a figure where they were
touched. But neither this book or
any others have been validated for diagnosing child
sexual abuse.

A child's behavior in play therapy may be used to substantiate
abuse. Such therapy is
sometimes called disclosure-based and the sessions focus
on reenactments and
talking about the alleged abuse. Although there is no
evidence that play therapy is an
effective therapeutic procedure (Campbell, 1992a; Underwager
& Wakefield, 1990;
Wakefield & Underwager, 1988, 1994c; Weisz &
Weiss, 1993) children are frequently
given therapy for sexual abuse before there has been
any legal determination that
sexual abuse has occurred. But there is no support for
the supposition that behaviors
in play therapy can be used as signs to establish the
truth of past events. Campbell
(1992b) notes that play therapy can influence children
to accept the beliefs of the
therapist and can be a contributing factor to false
allegations.

Evaluating the Child's Statement and The Allegation

Several factors should be considered in analyzing a
case. The circumstances under
which the original report was made, the age of the child,
how many times the child
was questioned, the hypotheses of the interviewers who
questioned the child, the
kinds of questions that were asked, and the consistency
of the child's report over time
are all important in judging the credibility of the
allegation (Berliner & Conte, 1993;
Ceci & Bruck, 1993a, 1993b; Underwager & Wakefield,
1990; Wakefield &
Underwager, 1988, 1994c).

The origin and timing of the original disclosure is
important. The allegations are less
likely to be correct when an adult, rather than a child,
initiates the disclosure (Yates &
Musty, 1988, Yates, 1988). The disclosure may have come
about only after the adult
becomes suspicious after observing one of the so-called
behavioral indicators and
begins questioning the child (Wakefield & Underwager,
1988; Rogers, 1990).
Although adolescents may fabricate an allegation, young
children almost never
initiate a false allegation without influence from an
adult. A spontaneous disclosure
made by a young child without evident adult influence
is more likely to be true. The
timing and circumstances of the allegation are also
important, especially in the divorce
and custody context.

Allegations that turn out to be false appear to often
involve very young children.
Schaefer and Guyer (1988) report that the children in
their false cases were most
often under five years old. Everstine and Everstine
(1989) note that a younger child,
whose parents are divorcing, may be more vulnerable
to the manipulations of an
angry and vengeful parent. In 216 cases of sexual abuse
allegations involving 325
children in the divorce context we have analyzed, the
median age when the
allegations were "probably true" was 8.6 and
was 4.6 when the allegations were
"probably false."

It is important to look at exactly what kind of abuse
is alleged. Schaefer and Guyer
(1988) note that in cases involving false allegations
in the divorce and custody
context, the allegations were often extremely vague.
Also, normal parenting behaviors
such as bathing, toileting, tickling may be mistakenly
labeled as sexual abuse (Cooke
& Cooke, 1991). Rosenfeld and his colleagues (Rosenfeld,
Bailey, Siegel, & Bailey,
1986; Rosenfeld, Siegel, & Bailey, 1987) stress
getting normative information on
nakedness, genital touching and bathing practices before
deciding whether any of
these behaviors support a suspicion of sexual abuse
since they found that many
behaviors which could trigger suspicion of abuse occurred
often in normal families.

When there is no corroborating evidence, and the behaviors
alleged are highly
improbable, it is unlikely that the allegations are
true. There is information about the
behavior of known sexual abusers (e.g., Erickson, Walbek,
& Seely, 1988; Kendall-
Tackett & Simon, 1992; Tollison & Adams; 1979,
Wakefield & Underwager, 1994a,
1994b). Fondling is common and aggression and physical
violence are rare. Bribery
is more common than threat. Vaginal and anal penetration
are rare in very young
children because it is so painful. Therefore, when the
allegations are of very low
frequency behaviors such as rape, physical violence,
vaginal or anal penetration of a
very young child, feces and urine, and/or ritual abuse
with several people involved,
the allegations are unlikely to be true.

There is general agreement concerning the characteristics
of a child's statement in
cases of actual abuse compared to false allegations,
although there is little research
thus far on this. Contextual details and appropriate
affect are seen by many
professionals as important (deYoung, 1986; Faller, 1988;
Jones & McGraw, 1987;
Jones & Seig, 1988; Sink, 1988; Wakefield &
Underwager, 1991b, 1994c). These
characteristics are similar to several of the criteria
looked for in the Criterion Based
Content Analysis/Statement Validity Analysis procedure
described earlier (Honts,
1994; Horowitz, et al., 1992; Köhnken & Steller,
1988; Raskin & Esplin, 1991; Rogers,
1990; Undeutsch, 1989). Therefore, the quantity, quality
and contextual embedding of
details and appropriate affect and emotion are useful
criteria when evaluating the
child's statement. This assumes, however, that the details
are taken from the child's
narrative and not from yes or no answers in response
to leading questions. It also
assumes that the interview took place soon after the
disclosure and that the child had
not been given multiple previous interviews.

In divorce and custody cases, strong hatred expressed
toward the accused parent
based upon trivial and vague reasons may result from
learning from the accusing
parent rather than from actual abuse (Gardner, 1992c).
Ross and Blush (1990) report
that in a false allegation, the child may describe "horrible"
and traumatic events while
not appearing to be traumatized. Also, a young child
who is very eager to talk about
the abuse may have learned that adults reward such talk
(Wakefield & Underwager,
1988).

Post-traumatic Stress Disorder (PTSD)

This diagnosis of PTSD is frequently used when there
are allegations of sexual
abuse. However, it is often given in error and is used
to buttress the claim that the
alleged abuse is, in fact, true.

According to the DSM-III-R, this diagnosis cannot be
made in the absence of a verified
traumatic event that is "outside the range of usual
human experience . . . (and) would
be markedly distressing to almost anyone, and is usually
experienced with intense
fear, terror, and helplessness" (American Psychiatric
Association, 1987). The DSM-IV
is similar: ". . . extreme traumatic stressor involving
direct personal experience of an
event that involves actual or threatened death or serious
injury, or other threat to one's
physical integrity . . . The person's response must
involve intense fear, helplessness,
or horror" (American Psychiatric Association, 1994,
p. 424).

But observed behaviors on the part of the alleged victim
cannot be used to reason
backwards to prove that the claimed event actually occurred.
The Task Force Report of
the American Psychiatric Association (Halleck, Hoge,
Miller, Sadoff, & Halleck, 1992)
maintain that a DSM-III-R diagnosis cannot be used to
conclude that criminally
actionable conduct has occurred. They state: "In
the absence of a scientific foundation
for attributing a person's behavior or mental condition
to a single past event, such
testimony should be viewed as a misuse of psychiatric
expertise" (p. 495).

When a diagnosis of PTSD is made in child sexual abuse
allegations, often the intent
is to buttress the allegation by essentially saying
these are symptoms seen now and
they are caused by the abuse done in the past. This
is the formal logical error known
as affirming the consequence. It may appear to have
the form of a valid argument but
relevant facts have been left out, evaded, or distorted.
This logical error is also a
confusion between one way and bidirectional implication.
The argument may be like
this: If the child has been sexually abused, she should
have nightmares. She has
nightmares. Therefore, she has been sexually abused.
The fact evaded is that
nightmares can be caused by many things, including eating
green apples. Any
attempt to introduce the PTSD diagnosis in this fashion
must be challenged. Also the
basis for the diagnosis must include sufficient documented
symptomatology to meet
the requirements of DSM-III-R and DSM-IV.

Maryland v. Craig

There has been a growing attempt to protect the child
witness from the trauma of
testifying in court by modifying court procedures, such
as testifying behind a screen or
on videotape in another room. This was the issue addressed
in Maryland v. Craig ,
Certiorari to the Court of Appeals of Maryland. No.
89-478, June 27, 1990, where,
according to the Supreme Court, if the prosecution moves
to have the child witness
testify behind a screen, they will have to establish
several things:

(c) The requisite necessity finding must be case specific.
The trial court must hear
evidence and determine whether the procedure's use is
necessary to protect the
particular child witness' welfare; find that the child
would be traumatized, not by the
courtroom generally, but by the defendant's presence;
and find that the emotional
distress suffered by the child in the defendant's presence
is more than de minimis (p.
iii).

This Supreme Court ruling demands that there be an evidentiary
hearing, prior to the
trial, at which there will be testimony about the effect
on the specific child of testifying
in the presence of the person accused. The defense will
object, since such a
procedure gives the message the defendant has done something
to terrify the child. It
may well give an impression of guilt similar to bringing
the defendant into the
courtroom in shackles. There is also the question of
the violation of the defendant's
Sixth Amendment rights.

The prosecution is likely to use whatever experts have
interviewed the child or
provided therapy to offer testimony and opinions. This
is despite the fact that there is
no research separating out the single factor of the
defendant's presence from all other
factors in assessing the probable effects of courtroom
testimony on a child. Therefore,
if the prosecution makes such a motion, the defense
should immediately move for an
evaluation of the child by their own expert in order
to counter the testimony of the
prosecution's experts.

A mental health professional who testifies that the
requirements of Maryland v. Craig
are met and therefore a screen can be used has exceeded
the competency and ability
of the mental health professions. There are no empirical
data to support such a claim.
There is no way any competent mental health professional
can testify that emotional
distress would be caused solely and alone by the presence
of the defendant
(Underwager & Wakefield, 1992). There are no techniques
that can measure
emotional distress with the precision required by the
Supreme Court.

(See Underwager & Wakefield [1992] and Gembala &
Serritella [1992] for a
discussion of the implications of Maryland v. Craig).

New Jersey v Michaels

New Jersey v Michaels 642 A.2d 1372, N.J. (June 13,
1994) is a decision from the
New Jersey Supreme Court, but the ruling has been used
in other states. Kelly
Michaels had been convicted of sexually abusing children
in a day care center and
was imprisoned for five years before her case was overturned
on appeal. The children
had been subjected to highly leading, suggestive, and
coercive interviews. The New
Jersey Supreme Court ruled that the interrogations of
the children were improper, and
given substantial likelihood the evidence derived from
them was unreliable, a pretrial
hearing was required at which the state would be required
to prove by clear and
convincing evidence that the statements and testimony
retained sufficient degree of
reliability to warrant admission at trial.

What this ruling means is that, in situations where
the interviews of the child witnesses
were leading and suggestive, the attorney can move for
a taint hearing where the
state must prove that the interviews were not leading
and coercive and that the
testimony of the child witness(es) would be reliable.
In the taint hearing, the state is
entitled to call experts to offer testimony with regard
to the suggestive capacity of the
suspect investigative procedures, and the defendant
may offer expert testimony of the
issue of the suggestiveness to counter the state's evidence.
Attorneys must be
knowledgeable about the information above on memory,
suggestibility, and
interviewing techniques.

Allegations in Divorce and Custody Disputes in Family
Court

The most desirable situation when there has been an
accusation of sexual abuse in a
custody conflict is to evaluate all of the parties.
However, this is not always possible.
When there is an abuse accusation, the accused parent
is placed in the role similar to
that of the defendant in a criminal case. Therefore,
what is said above concerning the
evaluation of a defendant and of the child applies here.
However, there are not the
difficulties in terms of admissibility in family court.
Also, in a family case, it may be
possible to evaluate both the child and parent and to
observe the interactions.

Unlike in criminal proceedings, in family court, it
is usually possible to get psychiatric
records on the complaining parent as part of discovery.
If both a criminal and a family
proceeding are taking place simultaneously, get this
information through the family
case. Also, when there is a custody dispute, it is often
possible to obtain an order for
the expert to evaluate the other parent. The recommendations
made above
concerning evaluating the circumstances under which
the allegations arose and the
progress of the case hold here as well.

The personality characteristics of the parties involved
are particularly important when
the allegations surface in a divorce and custody dispute.
Personality disorders and
other psychiatric problems have been reported in parents
who make false allegations
(Ross & Blush, 1990; Green & Schetky, 1988;
Jones & McGraw, 1987; Rogers, 1990;
Klajner-Diamond, Wehrspann, & Steinhauer, 1987;
Wakefield & Underwager, 1990).
Faller (1990) notes that a childhood history of abuse
in the mother may result in
distortions of events or hypervigilance. However, as
Bresee, Stearnes, Bess, and
Parker (1986) point out, a troubled and angry woman
may nevertheless have
discovered evidence of actual sexual abuse.

Several professionals have noted differences in the
behavior of the accusing parent
when there is real abuse compared to cases of false
allegations (e.g., Bresee et al.,
1986; Cooke & Cooke, 1991; Faller, 1990; Gardner,
1992b, 1992c; Jones & Seig,
1988; Wakefield & Underwager, 1991b). The natural
response of a reporting parent is
to hope that the child was not sexually abused and to
be relieved when the evaluator
believes abuse is unlikely. The parent will consider
other explanations for the
behaviors that aroused her suspicions and she may initially
report not believing the
abuse, or thinking that the child was mistaken. If the
evaluator concludes that abuse
was likely, she will probably be upset, distressed,
and embarrassed.

But in a false allegation, the accusing parent may be
firmly convinced the abuse is
real and be unwilling to consider any other explanations
for the child's behavior. She
is likely to feel vindicated if her suspicions are validated
by the interview or medical
examination and may even tell everyone about what happened
and what a terrible
person her former spouse was. If the evaluator says
that abuse is unlikely, this parent
may look for other professionals who will confirm her
suspicions. She may even
involve the child in multiple examinations and interviews
despite the effect of this on
the child (Bresee et al., 1986; Cooke & Cooke, 1991;
Rand, 1989, 1990, 1993;
Schaefer & Guyer, 1988). Such an experience can
be iatrogenic for the child (Jones,
1991; Wakefield & Underwager, 1994c).

Civil Cases

Evaluation of the Defendant

When there is a dispute concerning the behavior of the
defendant, a psychological
evaluation can be performed. In such cases, the information
obtained is similar to that
in criminal cases.

Evaluation of the Plaintiff

There are several questions to be addressed in psychological
evaluations of plaintiffs
for civil litigation in addition to that discussed above
under the evaluation of the child
witness in criminal cases. Although in some civil cases
the major defense is that the
abuse did not occur, in others, the abuse is admitted.
There may be acknowledgment
of the abuse but dispute as to its intrusiveness and
extent. Therefore, in conducting an
evaluation of the plaintiff, the following questions
should be addressed:

What are the personality characteristics and current
psychological functioning
of the plaintiff?

What is the probable cause of any emotional problems?

What is the probability that the alleged event occurred
as claimed?

What are alternative explanations for the statements
being made by the
plaintiff?

(In recovered memory cases with adults) When did
the plaintiff realize he or she
had been sexually abused? (This goes to the statute
of limitations.) (See below for a
discussion of recovered memory allegations.)

When evaluating emotional damage resulting from sexual
abuse, it must not be
assumed that sexual abuse will inevitably cause psychological
problems. Not all
victims of childhood abuse show later adjustment problems.
Finkelhor (1990) reports,
"Almost every study of the impact of sexual abuse
has found a substantial group of
victims with little or no symptomatology" (p. 327).
Parker and Parker (1991) observe, "It
is far from clear if the abusive experience itself plays
a significant causal role in
subsequent maladjustment" (p. 185). Berliner and
Conte (1993) state, "Although
common psychological characteristics may be present
in many cases, there is no
evidence for the assertion they are contained in all
or even the majority of true cases
of child sexual abuse" (p. 116).

In conducting an evaluation of the plaintiff, obtain
all medical records and school
records. School records will often contain information
about behavior problems,
health, referrals for counseling, etc., in addition
to grades. This will help determine
what problems may have predated the abuse incidents.
With adults, there sometimes
will be an MMPI or other evaluation records prior to
the date the abuse was said to
have occurred. In one repressed memory case against
a school teacher, the young
man claimed he began gaining weight in fifth grade,
the year the alleged abuse took
place. He maintained he changed from a happy, normal
boy into a fat and unhappy
child who was then scapegoated through school. However,
his medical and school
records had weights noted at different ages so we were
able to chart his weight from
early childhood through high school and disprove his
claim of a sudden weight gain in
fifth grade.

With children, the interview should include information
concerning the child's current
life as well as the abuse incidents. Parents should
be interviewed about their
perception of the child's problems. Psychological testing,
such as the WISC-R and the
Bender, will provide information about the child's developmental
level as well as give
another opportunity to observe the child's behavior.
Parent inventories, such as the
Personality Inventory for Children (PIC) and the Louisville
Behavior Checklist give
information both about the child and about the parents'
perceptions of the child. These
latter tests can reflect a tendency to exaggerate problems.
If the parents are parties to
the lawsuit and claiming damages, they can also be evaluated.

In recovered memory cases, the plaintiff will be an
adult. The evaluation should
include a diagnostic interview, a social/sexual history,
and a battery of psychological
tests, with emphasis on objective tests such as the
MMPI-II, MMPI-A, MCMI-II, and the
CPI.

A direct causal relationship between the behaviors of
the defendant and the plaintiff's
current problems is difficult to establish. Although
some victims of childhood sexual
abuse are reported to have a number of symptoms, including
depression, anxiety, low
self-esteem, distrust, social isolation, sexual dysfunction,
eating disorders, and
difficulties in close interpersonal relationships, these
problems are not specific to a
history of sexual abuse. The base rates for these behaviors
associated with other
causal chains are higher than for any demonstrated link
with sexual abuse. The
behaviors frequently offered as behavioral indicators
of sexual abuse are instead
nonspecific stress responses which can be linked to
any number of stressor
experiences. Beitchman, Zucker, Hood, daCosta, and Akman
(1991), in a review of
the short-term effects of child sexual abuse, conclude
that, with the exception of
sexualized behavior, the majority of short-term effects
noted in the literature are
problems that characterize child clinical samples in
general.

Two recent review articles on the long-term effects
come to similar conclusions.
Beitchman, Zucker, Hood, daCosta, Akman, and Cassavia
(1992) and Pope and
Hudson (1992) report that empirical research has yet
to establish a relationship
between disorders frequently claimed to be caused by
sexual abuse (bulimia, multiple
personality disorder, borderline personality).

The characteristics of actual sexual abuse generally
associated with more negative
outcomes must be considered. There appears to be greater
trauma if the perpetrator is
a father or stepfather, if coercion, force, or violence
are present, and if the abuse
consists of more physically assaultive, intrusive acts
(Beitchman et al., 1991, 1992;
Browne & Finkelhor, 1986; Finkelhor, 1990).

An important factor associated with the effects of sexual
abuse is family dysfunction.
Although few of the studies on the effects of abuse
have controlled for the contribution
of family characteristics, those that have establish
that it is extremely difficult to
separate the effects of abuse from the effects of the
accompanying family dysfunctions.
This is because both extrafamilial and intrafamilial
sexual abuse are closely
associated with families that are dysfunctional and
pathological (Alexander & Lupfer,
1987; Beitchman et al., 1991; Harter, Alexander, &
Neimeyer; 1988; Hoagwood &
Stewart, 1989; Hulsey, Sexton, Harralson, & Nash,
1989).

For example, Hulsey et al. (1989) found that although
women with a history of
childhood abuse display greater pathology on the MMPI
than do nonabused women,
when childhood family variables (such as families that
are chaotic, conflicted, and
enmeshed) are considered, these differences are greatly
reduced or eliminated.
Therefore the pathology observed in an adult who was
sexually abused as a child
may be a function of a pathological home environment
rather than an effect of the
sexual abuse. Harter et al. (1988) report that family
characteristics and perception of
social isolation were more predictive of social maladjustment
than abuse per se.
When family characteristics were controlled, the presence
of abuse was not related to
social adjustment. Therefore, family characteristics
must be carefully explored and
considered.

Another factor to be considered is the fact that many
personality characteristics appear
to have a high heritability (Lykken, McGue, Tellegen,
& Bouchard, 1992; Tesser,
1993). The University of Minnesota twin studies have
produced powerful evidence
that personality factors are strongly affected by genes.
This must be considered when
forming conclusions concerning the cause of an individual's
emotional problems.

It is unlikely that all of a plaintiff's emotional problems
and global dysfunction will have
any single cause. To claim a direct, specific and singular
cause for anything human
beings do goes far beyond any evidence in the science
of psychology (Einhorn &
Hogarth, 1982; Faust, 1989; Gambrill, 1990; Meehl, 1977).

Frequently, the diagnosis of Post-traumatic Stress Disorder
is made in civil suits
involving sexual abuse. The abuse is said to have caused
a variety of significant
problems. This is an inappropriate diagnosis, as was
discussed above, when the
issue under dispute is whether or not the alleged abuse
actually occurred. In addition,
we have seen the diagnosis of PTSD given when the alleged
abuse was admitted but
consisted of gentle fondling over the clothing, or as
the sequelae to what appeared to
be a consensual relationship with a member of the clergy
or a job supervisor. This is
not the type of traumatic event needed to diagnose PTSD.

Allegations of Recovered Memory

Allegations of recovered memories of sexual abuse have
been appearing in the
media. There are no memories for years because the abuse
is said to have been
completely "repressed" until, generally with
the help of a therapist, it is then
"recovered." Such cases frequently lead to
some type of litigation, most likely civil, but
there have been criminal prosecutions as well.

Civil litigation based on recovered memory claims has
increased sharply in recent
years (Colaneri & Johnson, 1992; Kaza, 1991; Wares,
1991). The increase follows
changes in statutes of limitation, parental immunity
laws, redefinition of the term
"negligence," and the differentiation between
"intentional infliction of injury" and
"intentional act" (Colaneri & Johnson,
1992). Several states have now extended the
statutory period of limitations in civil cases until
several years after abuse is
remembered and/or after it is understood there was damage
done by the abuse
(Buckley & Horwitz, 1994; Colaneri & Johnson,
1992; Kaza, 1991; Loftus, 1993; Loftus
& Rosenwald, 1993; Silberg, 1993; Slovenko, 1993).

If the discovery rule states that a cause of action
does not accrue until the plaintiff
discovers, or should have discovered the injury, the
defendant may be sued many
years after the alleged event. This is significant if
the plaintiff claims no awareness of
injury until the statute of limitations period had passed.
When the plaintiff claims
memories of abuse were blocked until therapy enabled
them to be recovered, the
limitation period does not begin until the abuse is
remembered. Also the plaintiff may
maintain that he or she did not realize the abuse had
caused injury until therapy.
Therefore, if a memory for abuse was "repressed,"
civil action is possible, but if the
memory was always there, nothing can be done.

Therapists and survivors' groups often encourage such
litigation (Crnich & Crnich,
1992; Nohlgren, 1991). The best-known survivors' book,
The Courage to Heal (Bass &
Davis, 1988), not only tells readers how to file civil
suits, but contains a list of attorneys
who take such cases. In Texas, it was ruled that homeowner's
insurance policies may
be tapped in such cases. The result in Texas has been
a sudden, dramatic increase in
the number of such actions (Hull, 1991).

In litigation involving claims of recovered memory,
a psychological evaluation of the
plaintiff is essential. In addition to what was discussed
above, this evaluation must
include an analysis of how the memory was recovered
and all influences on the
plaintiff such as therapy, books, television shows,
etc. (See Coleman, 1992 for an
example of this type of analysis in a recovered memory
case involving civil litigation.)

Uncovering of Memories in Therapy

Attorneys must understand the claims, the scientific
basis for these claims, and the
therapeutic techniques often used in recovered memory
cases. Therapists
specializing in this effort maintain that memory deficits,
amnesia, and dissociation are
characteristic of trauma. Many maintain that large numbers
of women have been
sexually abused but that up to half of all incest survivors
do not remember their abuse.
Many believe that abuse survivors must be helped to
retrieve their memories in order
to recover. They often retrieve memories with intrusive
and unvalidated techniques
including direct questioning, hypnosis, reading books,
attending survivors' groups,
age regression, dream analysis, and a variety of unorthodox
procedures.

These "repressed" or "dissociated"
memories are thought to differ from the simple
forgetting or not thinking about an event that may have
been unpleasant but was not
particularly traumatic. No psychologist disagrees that
many events are forgotten and
that persons may be cued to remember them years later.
Also, the phenomena of
infant amnesia means that most people's earliest memories
are not before the age of
about three or four (Fivush & Hamond, 1990; Howe
& Courage, 1993; Loftus, 1993;
Nelson, 1993). Instead, the assumption in recovered
memory therapy is that the abuse
was repressed or dissociated because it was too traumatic
to be remembered.

The recovered memory therapists support their assumptions
through concepts such
as repression, dissociation, traumatic amnesia, body
memories, and multiple
personality disorder. However, there is no support in
the scientific literature for the way
these concepts are used, nor any credible evidence that
it is common for children to
undergo traumatic sexual abuse but, as adults, have
no conscious memories of the
abuse until it is uncovered by a therapist "skilled"
in such matters (Wakefield &
Underwager, 1992, 1994b; Lindsay & Read, 1994).

In summary, repression is not generally accepted in
the scientific community except
among analytically-oriented therapists, who base their
beliefs on anecdotal reports
and clinical case studies. Traumatic amnesia can occur
for a single, traumatic event,
such as a rape, but there is no support for the claim
that it is common for individuals to
be completely amnesiac for repeated episodes of sexual
abuse. There is no support
that such events will be completely repressed for years,
only to be accurately
remembered only years later. Diagnoses of Multiple Personality
Disorder often appear
in recovered memory cases, especially when the alleged
abuse is violent and sadistic
and many people claim most individuals diagnosed with
MPD were abused as
children (Kluft, 1987, 1991; Putnam, Guroff, Silberman,
Barban, & Post 1986). But,
support for this diagnosis is based only on clinical
case reports and, even though it is
in the DSM-III-R and the DSM-IV, MPD itself is controversial.
It cannot be said to be
generally accepted in the scientific community.

Psychological Evaluations and Case Analysis in Claims
of Recovered Memory

A proper evaluation of such allegations requires a broad
range of information about
the individuals involved, the origin of the disclosure,
and the nature of therapy (see
Daly & Pacifico, 1991, Rogers, 1992, 1994, and Wakefield
& Underwager, 1992,
1994a, 1994b for suggestions of important information
to be obtained as part of an
investigation).

Some professionals have proposed ways of evaluating
claims of alleged sexual
abuse based on recently recovered memories (Gardner,
1992a, 1992b; Rogers, 1992;
Wakefield & Underwager, 1992). Since this is a new
area, lacking in empirical
research, these suggestions are based on existing knowledge
about such areas as
memory, social influence, suggestibility, conformity,
the psychotherapy process,
hypnosis, and the characteristics and behavior of actual
sexual abusers. The
provisional criteria we have suggested include (Wakefield
& Underwager, 1992):

When there is no corroborating evidence and the allegations
are of extremely
deviant, low-probability behaviors, rather than of behaviors
more typical of actual
abusers, the recovered memory is less likely to be for
an actual event. This becomes
even less likely when the accusations include the mother
and others and when a
psychological evaluation of the defendant indicates
no pathology.

If the recovered memory is for abuse that occurred
at a very young age, such as
abuse during infancy or under age three or four, it
is not likely that the memory is for a
real event. This is much younger than the average age
of documented sexual abuse
victims. Also, the phenomenon childhood or infantile
amnesia makes it unlikely that
the memory is of a real event.

If the abuse has only recently been "remembered,"
it is much less likely to be
true than it has always been remembered but the individual
is only now disclosing.

If the accusations only emerge following reading
The Courage to Heal (Bass &
Davis, 1988), hypnosis, survivors' group participation,
or dream analysis the
recovered memories are apt to be the result of therapy.

Although personality disorders or serious emotional
problems may make
individuals more susceptible to this influence, this
does not appear to be a necessary
factor. Therefore the absence of a history of emotional
problems in the plaintiff does
not mean that the recovered memory is more likely to
be real.

If the allegations are of a series of abusive incidents
across time in different
places and situations, the abuse is less likely to be
true than if it is for a single incident.

Any claims that the individual must have been abused
because of problems in
her life that are associated with sexual abuse must
be viewed cautiously. The
existence of eating disorders, sexual dysfunction, anxiety,
depression, or low self-
esteem cannot be used to support the probability of
abuse since these can all be
caused by a variety of factors (Beitchman, et al, 1992;
Pope & Hudson, 1992). (See
discussion of this above.)

When the recovered abuse allegations progress across
time to ever more
intrusive, bizarre, and improbable behaviors, the growth
of the story is likely to
represent the effect of therapy.

Allegations of ritual abuse by intergenerational
satanic cults are extremely
unlikely to be true. Despite hundreds of investigations,
no corroborating evidence for
the existence of these cults has ever been found (Hicks,
1991; Lanning, 1992).

Corroborating evidence, such as a childhood diary
with unambiguous entries or
pornographic photographs, obviously makes the allegations
much more likely to be
true. Ambiguous evidence, however, such as a childhood
story or drawings now
reinterpreted in light of the believed-in abuse, cannot
be used as support that the
abuse actually occurred.

Daubert v Merrill Dow Pharmaceuticals

The recent unanimous United States Supreme Court decision
in Daubert v. Merrell
Dow Pharmaceuticals (U.S. Supreme Court 1992-93 term,
No. 92-102, 509 US, 113
S Ct 2786) in June, 1993 dramatically changes the criteria
by which scientific
testimony will be admitted as evidence in court. The
ruling states that the major
criterion of the scientific status of a theory is its
falsifiability, refutability, or testability.
This, in effect, replaces the Frye test (Frye v. United
States, 293 F. 1013) with the
Popperian principle of falsification as the determinant
of scientific knowledge.

Blackmun, who wrote the opinion, identified four factors
that the court should consider
in determining whether an expert's opinion is valid
under rule 702:

Whether the expert's theory or technique has been
or can be tested or falsified.

Whether the theory or technique has been subjected
to peer review or
publication.

What the known or potential rate of error is for
any test or scientific technique
that has been employed.

Whether the technique is generally accepted in the
scientific community.

Therefore, general acceptance in the scientific community
(the Frye test) is one
consideration, the lack of such by itself does not preclude
the proposed testimony.
This will make admissible new scientific evidence that
was excluded under Frye. At
the same time, if properly understood and followed,
this ruling is likely to render
inadmissible testimony based on such concepts and theories
as the child sexual
abuse accommodation syndrome and claims that childhood
sexual abuse has been
"repressed."

Although the decision is limited to federal court, it
will be applicable wherever federal
rules of evidence apply. (See Underwager & Wakefield,
1993 and Stewart, 1993 for
discussions of the Daubert decision.)

Conclusions

The science of psychology can provide the lawyer with
useful information that is of
high and clear validity. The information can be of assistance
to the finder of fact. Much
of this information is counterintuitive and is not understood
by the general public and
the justice system. The lawyer must either understand
enough about psychology to
discern what is valid and empirically supported or have
expert assistance. There is a
great deal of subjective speculation and unsupported
opinion that is passed off as
authoritative by the mental health professions. If a
lawyer encounters material of low
and doubtful validity, it can be successfully challenged
and an expert presenting such
speculations can be successfully impeached. The basic
question to ask is always,
"What are the data supporting your opinion?"

There are also standards of practice that, if known
to the lawyer, can assist in dealing
with mental health experts who may adopt a hostile and
uncooperative stance.
Techniques and procedures of questionable validity and
reliability can be identified
and examined for their quality and level of accuracy.
Whether or not the useful and
relevant information that can assist the finder of fact
is admitted is largely a matter of
the skill and the knowledge of the lawyer seeking admission
of psychological science.

Everson, M. D., & Boat, B. W. (1990). Sexualized
doll play among young children:
Implications for the use of anatomical dolls in sexual
abuse evaluations. Journal of the
American Academy of Child and Adolescent Psychiatry,
29, 736-742.

Herbert, C., Grams, G., & Goranson, S. (1987). The
use of anatomically detailed dolls
in an investigative interview: A preliminary study of
"non-abused" children. Vancouver,
British Columbia: Department of Family Practice, University
of British Columbia.

Large, D. W., & Michie, P. (1981). Proving that
the strength of the British Navy depends
on the number of old maids in England: A comparison
of scientific proof with legal
proof. Environmental Law, 11(2), 557-638.

Rogers, M. L., & Echeandia, D. M. (1990, June).
Problems in psychological practice
and law enforcement procedures reflected in sex abuse
cases as seen in People v.
Stoll et al. and People v. Ruiz, Paper presented at
a seminar of the Child Abuse and
Sexual Assault Prosecution Unit of the Orange County,
California District Attorney's
Office.

Yates, A., & Terr, L. C. (1988). Debate Forum: Anatomically
correct dolls: Should they
be used as a basis for expert testimony. Journal of
the American Academy of Child
and Adolescent Psychiatry, 27, 254-257.

This is a revised version of a paper that was originally
presented at "The Deadliest
Accusation: Child Sexual Abuse in the 90s," Seminars
sponsored by the National
Association of Criminal Defense Lawyers on May 21, 1993
in Las Vegas, Nevada and
April 8, 1994 in Washington, DC. Ralph The paper was
published in Issues In Child
Abuse Accusations, 7(1), 30-52. (1995).

The views and opinions expressed in this page are strictly those of the page author.The contents of this page have not been reviewed or approved by the University of Minnesota.